• The Genetic Information Nondiscrimination Act of 2008
  • June 11, 2008
  • Law Firm: Dinsmore & Shohl LLP - Cincinnati Office
  • On May 1, 2008, the United States House of Representatives approved the Genetic Information Nondiscrimination Act (GINA) by a vote of 414 to 1. A week prior to that, the Senate unanimously approved the legislation. The President is expected to sign the law in the coming weeks. GINA makes it an unlawful employment practice for an employer to discriminate against an employee based on the employee's genetic information. Additionally, the law prohibits an employer from disclosing genetic information about an employee that is in their possession. In short, under the new law, employers can no longer use genetic information or family medical history when making hiring, firing, or promotion decisions.

    The recent passing of GINA ends a 13-year journey for the bill, which was first introduced in 1995 by a House Democrat from New York. In 2003, the bill passed the Senate by a vote of 95 to 0, and in 2005 it passed by 98 to 0. Last year, the House approved the bill 420 to 3. This year, when the bill came up again, Senator Tom Coburn placed a hold on it due to concerns that the law could subject employers to civil rights lawsuits from disputes over medical coverage. GINA contains an insurance section that also prohibits insurance companies from using genetic information to deny benefits or raise premiums for individual policies. However, after the addition of language to protect employers from lawsuits that stem solely from insurance company violations of the law, Senator Coburn agreed to allow the law to move forward. Finally, by May of this year, GINA had passed in both the House and Senate.

    With the mapping of the human genome in 2003, employees have gained access to significant information about their hereditary medical disposition. According to the National Human Genome Research Institute, each person likely has six or more genetic mutations that increase the risk of developing a disease. Currently, 1,200 genetic tests exist which can diagnose health conditions--that number has grown from just 100 genetic tests 10 years ago. With the recent increase in availability of such testing, the issue of genetic information in the workplace is relatively new, as well as developing. Many see the passage of GINA as an attempt to prevent a form of discrimination that has little basis as of yet. However, Senator Edward Kennedy described GINA as "the first major new civil rights bill of the new century."

    The Genetic Information Nondiscrimination Act of 2008 states that:

    It shall be an unlawful employment practice for an employer--

    (1) to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee; or

    (2) to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.

    (b) Acquisition of Genetic Information- It shall be an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee except--

    (1) where an employer inadvertently requests or requires family medical history of the employee or family member of the employee;

    (2) where--

    (A) health or genetic services are offered by the employer, including such services offered as part of a wellness program;

    (B) the employee provides prior, knowing, voluntary, and written authorization;

    (C) only the employee (or family member if the family member is receiving genetic services) and the licensed health care professional or board certified genetic counselor involved in providing such services receive individually identifiable information concerning the results of such services; and

    (D) any individually identifiable genetic information provided under subparagraph (C) in connection with the services provided under subparagraph (A) is only available for purposes of such services and shall not be disclosed to the employer except in aggregate terms that do not disclose the identity of specific employees;

    (3) where an employer requests or requires family medical history from the employee to comply with the certification provisions of section 103 of the Family and Medical Leave Act of 1993 (29 U.S.C. 2613) or such requirements under State family and medical leave laws;

    (4) where an employer purchases documents that are commercially and publicly available (including newspapers, magazines, periodicals, and books, but not including medical databases or court records) that include family medical history;

    (5) where the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace, but only if--

    (A) the employer provides written notice of the genetic monitoring to the employee;

    (B)(i) the employee provides prior, knowing, voluntary, and written authorization; or

    (ii) the genetic monitoring is required by Federal or State law;

    (C) the employee is informed of individual monitoring results;

    (D) the monitoring is in compliance with--

    (i) any Federal genetic monitoring regulations, including any such regulations that may be promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.), or the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.); or

    (ii) State genetic monitoring regulations, in the case of a State that is implementing genetic monitoring regulations under the authority of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.); and

    (E) the employer, excluding any licensed health care professional or board certified genetic counselor that is involved in the genetic monitoring program, receives the results of the monitoring only in aggregate terms that do not disclose the identity of specific employees; or

    (6) where the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory or for purposes of human remains identification, and requests or requires genetic information of such employer's employees, but only to the extent that such genetic information is used for analysis of DNA identification markers for quality control to detect sample contamination.

    (c) Preservation of Protections- In the case of information to which any of paragraphs (1) through (6) of subsection (b) applies, such information may not be used in violation of paragraph (1) or (2) of subsection (a) or treated or disclosed in a manner that violates section 206.

    While the ramifications of GINA's enactment are unclear, it is noteworthy that when the bill came before Congress again this year, Congress considered testimony from an employee claiming genetic discrimination by his employer. This employee of a Texas-based railroad, claimed that his employer had taken his blood and performed genetic tests on it without his consent. The employee further claimed that the railroad genetically tested all employees complaining of carpal tunnel syndrome, in order to argue that their injuries were not job related, but that they instead had genetic predispositions to the condition. While this may seem an extreme example of misuse of genetic information, employers should make sure all members of management are aware of when they may come across GINA protected information. For example, GINA not only characterizes "genetic information" as tests that determine variations in a person's DNA, but also includes the family history an employee may have for a certain disease or medical condition.

    Employers should take note now that this law is going into effect. At this point, GINA does not provide a disparate impact claim on the basis of genetic information. However, Congress has set up a commission to look back in six years to make recommendations as to whether a separate disparate impact cause of action should be added. Also, as the employment portion of GINA will not go into effect until 18 months after it becomes law, employers still have an opportunity to prepare. A careful review of the law and an overall awareness of what is considered genetic information and its increasing prevalence is crucial to GINA compliance.